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April 21, 2007

NY Gov. Spitzer as the true sentencing action hero

Despite his action hero movie persona, California Governor Arnold Schwarzenegger continues to play the role of villain in various sentencing reform stories: e.g., authorizing (and then halting) work on a secret death chamber; persistently failing to deal with severe prison problems; undermining efforts to reform the state's extreme three-strikes law. Meanwhile, on the other coast, New York Governor Eliot Spitzer is showing how easy it can be for a motivate chief executive to move forward on sentencing reform.

As detailed in this press release, yesterday Spitzer announced several appointments to the New York State Commission on Sentencing Reform. Spitzer on his own initiative created this Commission last month through Executive Order 10, which calls upon the Commission to "conduct a comprehensive review of New York’s current sentencing structure, sentencing practices, community supervision, and the use of alternatives to incarceration." And not one to waste any time, Spitzer's executive order creates an ambitious agenda and a tight timeline for this Commission's work:

The Commission shall make recommendations for amendments to state law that will maximize uniformity, certainty, consistency and adequacy of a sentence structure such that: (a) the punishment is aligned with the seriousness of the offense; (b) public safety is protected through the deterrent effect of the sentences authorized and the rehabilitation of those that are convicted; and (c) appropriate consideration is accorded to the victims of the offense, their families, and the community.

Reports of the Commission shall include, but not be limited to, an evaluation of the impact that existing sentences have had on length of incarceration, the impact of early release, the impact of existing sentences on the length of community supervision, recommended options for the use of alternatives to incarceration, and an analysis of the fiscal impact of the Commission's recommendations.

The Commission shall issue an initial report of its findings and recommendations on or before September 1, 2007, and a final report on or before March 1, 2008.

As the title of this post states, based on Executive Order 10, Spitzer is the true sentencing action hero. California has already provided an impressively detailed script of mistakes to avoid for states interested in sound sentencing reform. I am hopeful that New York is on the way to charting a much better path.

Schwarzenegger halts work on death chamber of secrets

Though not quite as intriguing as a Harry Potter novel, the plot continues to thicken in the on-going saga of California and the death penalty. As detailed in this news story, work on new death chamber that the state was building (in secret) has now been halted. Here are more details:

Gov. Arnold Schwarzenegger today halted construction of a new death chamber at San Quentin prison, the latest setback for authorities trying to resume executions after a 15-month hiatus triggered by a challenge to the state's procedures for lethal injections. The order came after legislators complained vociferously that they had not been consulted about the project, which apparently was conducted in secret.

"The governor has asked me to stop the project," James Tilton, secretary of the Department of Corrections and Rehabilitation, said in a midmorning call with a group of reporters. The governor "is very concerned about good communications with the Legislature. We should have done a better job of it."

Last week, it was revealed that state officials had begun quietly building a new death chamber. At the time, corrections officials said they had not consulted with the Legislature because the cost of the project would be only $399,000. State law requires legislative approval of any project that costs $400,000 or more. The tiny gap precipitated skepticism from lawmakers who indicated they thought the administration was engaged in an end-run around the Legislature. State Sen. Gloria Romero (D-Los Angeles) scheduled a hearing for April 25 in Sacramento. Today, Tilton and his chief assistant, Steve Kessler, acknowledged that the project had already cost $725,000.

Last December, a federal judge in San Jose ruled that California's application of its lethal injection death penalty procedures violates the constitutional prohibition against cruel and unusual punishment. The legal challenge to the state's death penalty protocol has effectively halted executions since February, 2006. U.S. District Judge Jeremy Fogel's ruling left the door open for the resumption of executions by lethal injection if the states come up with a revised procedure that the judge finds constitutionally acceptable.

April 20, 2007

More proof there are no boring executions (except perhaps in Texas)

ODPI has here links to the latest news coverage of an Ohio death row inmate's decision, after previously giving up legal challenges, to now try to join a lethal injection lawsuit just four days before his April 24 scheduled execution. I had thought that James Filiaggi's execution was going to go forward next week without any last-minute litigation or even much hub-bub, but now it seems that legal papers will be flying. Stay tuned.

A written opinion from the Seventh Circuit in the Georgia Thompson case

Though not as remarkable as its initial decision to order an acquittal right after oral argument, Seventh Circuit today issued its written decision in the Georgia Thompson case (basics here and here). The opinion in US v. Thompson, No. 06-3676 (7th Cir. Apr. 20, 2007) (available here) is authored by Judge Easterbrook, and it closes with this sentiment:

Sections 666 and 1346 have an open-ended quality that makes it possible for prosecutors to believe, and public employees to deny, that a crime has occurred, and for both sides to act in good faith with support in the case law. Courts can curtail some effects of statutory ambiguity but cannot deal with the source. This prosecution, which led to the conviction and imprisonment of a civil servant for conduct that, as far as this record shows, was designed to pursue the public interest as the employee understood it, may well induce Congress to take another look at the wisdom of enacting ambulatory criminal prohibitions. Haziness designed to avoid loopholes through which bad persons can wriggle can impose high costs on people the statute was not designed to catch.

Thoughtful DC Circuit opinion on Booker et al.

Published sentencing decisions from the DC Circuit are relatively rare and are usually quite thoughtful. Today's opinion US v. Bras, No. 05-3190 (DC Cir. Apr. 20, 2007) (available here), holds up the Circuit's Booker traditions. Here is how it begins:

Antonio C. Bras pled guilty to conspiracy to commit bribery and highway project fraud in violation of 18 U.S.C. § 371, an offense for which the statutory maximum is five years in prison. He was sentenced to 37 months’ incarceration under the regime announced in United States v. Booker, 543 U.S. 220 (2005). The validity of that sentence is the only issue on appeal.

Bras raises four challenges to his sentence. First, he contends that the district court sentenced him in violation of Booker principles, because it increased his sentence based on facts found by the court itself, using a preponderance of the evidence standard. Second, Bras maintains that the court violated his Sixth Amendment right to confront the witnesses against him, by increasing his sentence based upon testimonial evidence that was not subject to cross-examination. Third, he argues that the court used unreliable evidence to calculate the loss that his crime caused the government, and thereby erred in calculating his advisory Sentencing Guidelines range. Finally, Bras claims that his sentence was unreasonable, because the district court failed to adequately consider the relevant statutory sentencing factors. Finding these challenges to be without merit, we affirm the judgment of the district court.

Tenth Circuit shows inconsequence of presumption of reasonableness

In an interesting little (unpublished) opinion, the Tenth Circuit in US v. Davila-Salvatierra, No. 06-2053 (10th Cir. Apr. 19, 2007) (available here), reveals how inconsequential the preumption of reasonableness is for post-Booker reasonableness review. In Davila-Salvatierra, the defendant would seem to have a pretty good set of arguments for a below-guideline sentence, though the district court decided to follow the guidelines. The Tenth Circuit, citing the pendency of Rita and Claiborne, decided not to apply its usual presumption of reasonableness. But then it concluded that, on the facts of the case, "a bottom-of-the- Guidelines sentence provides just punishment, promotes respect for the law, affords adequate deterrence, and protects the public from future harm."

Will Ohio have an execution next week?

Gov. Ted Strickland will not grant clemency to James Filiaggi, a former Elyria man set to die by lethal injection Tuesday for shooting and killing his ex-wife in 1994. Strickland said yesterday he agrees with the state parole board's recommendation to deny clemency to Filiaggi. Filiaggi is on death row for chasing his ex-wife, Lisa Huff Filiaggi, from her West 29th Street house in Lorain to a neighbor's home and shooting her at point blank in January 1994. Filiaggi has not requested clemency.

This is not a surprising development, and the in-state buzz has been that Filiaggi was not planning to make any last minute legal challenges. However, ODPI is reporting here a important new development:

An attorney for James Filiaggi is filing a motion in US District Court today seeking inclusion of James Filiaggi in the Cooey v. Taft case challenging Ohio's lethal injection protocol. An accompanying motion seeking a stay of execution is also to be filed. These motions are not being filed against Filiaggi's wishes.

A prior scheduled Ohio execution of Kenneth Biros was postponed last month as a result of Ohio's lethal injection litigation (which is now pending possible en banc review in the Sixth Circuit). Because Filiaggi is seeking to join on to this litigation very late in the process, it will be interesting to see if this new development with impede Ohio's efforts to be the only state other than Texas to execute a defendant in the last three months.

Linking abortion and death penalty debates

Though many folks on both sides of the political isle view debates over abortion and the death penalty to be completely unrelated, here is one op-ed seeking to link the two. This piece is authored by John Lillpop, who claims to be "a recovering liberal." Here's is the heart of his lament:

[A]ccording to liberals like Hillary, women have a "constitutional right" to kill a fetus that is close to birth. Those same liberals will argue that it is "cruel and unusual" to stick a needle into a brutal serial killer in order to deliver justice.

April 19, 2007

Qwhite-collar conviction

Another high-profile sentencing is now in the works after, as detailed here, another high-profile white-collar conviction:

Joseph Nacchio, who built Qwest Communications International Inc. into the fourth-largest U.S. phone company and presided over a $100 billion drop in market value, was convicted of insider trading. A federal jury in Denver today found Nacchio, Qwest's former chief executive officer, guilty of selling stock based on private warnings from top lieutenants that the company would miss revenue targets.

Prosecutors said Nacchio made $101 million by illegally trading on inside information he withheld from investors. "If you don't tell, you can't sell,'' Assistant U.S. Attorney Colleen Conry told jurors in closing arguments. The jury found Nacchio guilty on 19 counts of insider trading for stock trades totaling $52 million. He was found not guilty of 23 counts relating to earlier trades totaling $49 million.

The conviction of Nacchio, 57, caps a U.S. crackdown on corporate fraud that began when Enron Corp. collapsed in 2001. Hundreds of executives have been convicted, including three ex- CEOs, Enron's Jeffrey Skilling, Bernard Ebbers of WorldCom Inc. and John Rigas, founder of Adelphia Communications Corp.

Nacchio left the courthouse with his wife Anne without commenting. The panel of eight men and four women convicted Nacchio after six days of deliberations. He faces up to 10 years in prison and a $1 million fine on each count. U.S. District Judge Edward Nottingham set Nacchio's sentencing date for July 27.

Today in US v. Livesay, No. 06-11303 (11th Cir. Apr. 19, 2007) (available here), the Eleventh Circuit reversed as unreasonable the probation sentence given to Kenneth Livesay, the former Assistant Controller and Chief Information Officer of HealthSouth Corporation. Here are some passages spotlighting the heart of the opinion:

Livesay's sentence of probation wholly fails to account for the nature and circumstances of his participation in this massive fraud-based criminal conspiracy and the need for his sentence to reflect the seriousness of his crimes....

Livesay’s sentence of probation — given the factual circumstances of this case, the major league economic crimes involved, and the advisory guidelines range of 78 to 97 months’ imprisonment — thus undermines the purposes of § 3553 by utterly failing to provide deterrence.

Interesting piece on California's prison woes

A favorite reader sent me this link to a piece from The Weekly Standard entitled, "California Behind Bars: Overcrowding, unionization and other prison problems. Here is an excerpt:

Surrounded by subdivisions with names like Almond Valley and Sierra Vista, the California State Prison in Lancaster looks more like an industrial park than a maximum-security facility. But the lethal throb of high voltage electricity coursing through its double-perimeter fence leaves no doubt that this is a place one enters with trepidation.

"This prison opened in 1993 with a capacity of 2,200, but today we have 4,300 prisoners, 468 of which are in temporary beds," says warden William Sullivan as we stroll across a common monitored by marksmen in looming guard towers. "I get 200 new inmates a week and 8,000 more are waiting in L.A. County jails for room to move in here."...

Of the many unpleasant tasks with which state governors must deal, prisons probably rank at the top of the list. Unlike education, infrastructure, and the environment, prisons have no natural constituency. Most states have a prison policy that can be summed up in one sentence: Get the bastards off the streets.

Over the past quarter century, California has done exactly that. The main tool prosecutors use is a "Three Strikes" law that mandates lifetime incarceration for people convicted of three felonies. It's a great law. Since its adoption in 1994, thousands of the state's most violent offenders have been locked away for good. Unfortunately, these sociopaths all too often are joined behind bars by nonviolent drug offenders, technical parole violators, and people who are more mentally ill than criminal.

Tough-on-crime sentencing enhancements, less discretion for trial judges, and the switch from indeterminate to fixed sentencing have resulted in a 600 percent increase in California's prison population between 1980 and 2006. Designed to hold 81,000 inmates, California's 33 prisons now house close to 174,000 men. Crowding is so intense that 16,000 convicts sleep in hallways, classrooms, and other areas not intended for habitation. Projections indicate that 23,000 additional inmates will be added within five years, which could prompt a corresponding jump in a suicide rate that already is twice the national average for prisoners.

The number 2,000,000 in sentencing perspective

I see from my site-meter summary that today I passed 2,000,000 total visits since the meter started running in late June 2004. That milestone prompts me not only to thank all of my readers for support and encouragement, but also to do a Harper's Index, sentencing style:

A bleg for a notable transcript

One of my students is working on a paper discussing child rape as a capital crime, and he is trying to get complete information about the crime and sentencing of Patrick Kennedy. (Kennedy is the defendant from Louisiana who was the the first defendant (and I believe is still the only defendant so far) to be sentenced to death for a non-homicide crime in the modern death penalty era.) Here is what my student is having trouble finding:

The transcript of record I am looking for is from the Patrick Kennedy case referenced in Joanna D’Avella's article "Death Row for Child Rape". It is note 2 and reads, "See Transcript of Record at 6068–69, State v. Kennedy, 854 So. 2d 296 (La. 2003) (No. 98-1425) [hereinafter Transcript of Record]."

A systematic examination of prison growth

John Pfaff has a fascinating new article that examines the theories and the empirical literature on the forces driving prison growth in the US over the past three decades. The paper, entitled "The Growth of Prisons: Toward a Second Generation Approach" is available at this link. Here is the abstract:

Over the past three decades, the US prison population has soared from 300,000 inmates to 1.5 million. In recent years, many scholars have devised rigorous empirical models to try to determine what forces have been most responsible for this impressive growth. This article reviews these studies and finds that all suffer from important shortcomings that limit the extent to which they accurately identify causal mechanisms. The problems are both technical and conceptual. Technically, most studies either fail to control for several significant empirical defects ― such as endogeneity, omitted variable bias, and colinearity ― or so do unconvincingly. Conceptually there are several issues. In some instances, for example, it is unclear whether the variable chosen to test a particular causal theory is an effective or accurate proxy; in others, the theory itself does not appear to be formulated correctly. This article sets forth the problems with the current studies and suggests technical and conceptual improvements for future work.

Revving up for the Gonzales hearing

This morning's Senate Judiciary Committee hearing about the US Attorney firings with AG Alberto Gonzales can be followed here, and How Appealing has some of the media coverage linked here. Here are a few of my prior posts on this brouhaha:

April 18, 2007

A quick James recap and tea leaves

In order to give folks a chance to discuss SCOTUS decisions that have nothing to do with abortion, let me recap prior James coverage and look forward based on that ruling to other sentencing work ahead:

Looking ahead, I come to these few tentative conclusions based on James:

1. None of the Justices save Justice Thomas likely has any deep interest in reversing the "prior conviction" exception to the Apprendi-Blakely rule.

2. Neither Justice Breyer nor Justice Kennedy vote as if he is genuinely troubled by broad applications of harsh mandatory minimum sentences. They both are good at talking the talk, but neither walk the walk. Now, if you murdered someone and get sentenced to death by a jury, then Justices Breyer and Kennedy are on your side.

3. In light of the harsh outcome, the long gestation, and strange voting blocks in James, I now have even less idea what to expect in Claiborne and Rita (except perhaps that Justice Breyer will continue to show an (uninformed) affinity for the guidelines and the US Sentencing Commission).

The oral argument in Panetti

A quick scan of this transcript of today's U.S. Supreme Court oral argument in Panetti v. Quarterman, No. 06-6407, confirms my instinct that the case could be of great symbolic importance, but it unlikely to have broad practical significance. But, with a focus on both the symbolic and practical realities of the death penalty, I cannot help but spotlight one of the final points stressed by Texas' Solicitor General at oral argument:

In our prisons there are unfortunately a great many people suffering from some degree of mental illness.... [An extreme] sort of delusion unfortunately is not uncommon on death row and it is not uncommon in prisons for paranoia -- the testimony of one of Panetti's experts, Doctor Conroy said, quote, "The major portion of our population in our in-patient units are diagnosed with some form of schizophrenia."

California considering eliminating LWOP for juveniles

A helpful reader sent me a link to this interesting article discussing a California bill to eliminate life-without-parole (LWOP) sentences for juveniles. Here are the highlights:

After testimony from a teen murderer who later became an ordained priest, a state Senate committee narrowly approved legislation Tuesday that would prevent juveniles from being sentenced to prison for life without the possibility of release.

State Sen. Leland Yee's legislation survived its first committee hearing as Yee argued that young killers can be rehabilitated. Yee, D-San Francisco, is seeking to end life-without-the-possibility-of-parole sentences for teenagers in a measure that would allow for the possibility of parole for teen murderers after 25 years behind bars. The bill would overturn a component of Proposition 115, a tough-on-crime ballot initiative passed by voters in 1990.

The legislation pits law enforcement groups, which argue that there are teens who commit such horrendous crimes that they should spend the rest of their lives in prison, against some child psychiatrists and religious groups, which argue that teens' brains are still developing and even those who kill should be given a chance at redemption. Parole would be granted only to inmates who convinced both the state's parole board and governor that they deserve to be released.

Supporting the bill Tuesday was James Tramel, who argued that his life story proved that even murderers can change their ways and contribute to society. Tramel was convicted of murder in 1985 for his role in the killing of a homeless man in Santa Barbara. He was granted parole last year, though, after becoming an ordained Episcopal priest while behind bars. Tramel had conducted services for the Episcopal Church of the Good Shepherd in Berkeley by phone from a prison in Vacaville....

Law enforcement groups oppose Yee's bill, however, arguing that judges have discretion now to sentence someone younger than 18 to life in prison without parole or allow for the possibility of parole. Teens who receive the lifetime sentence deserve it, said John Lovell, lobbyist for the California Police Chiefs Association. "We are talking about 16- and 17-year-olds who have evidenced such a level of sophistication and malice that they are being tried as an adult,'' Lovell said. "We make a mistake when we talk of these people as children and youth. They are people who have committed horrific crimes."

The number of juveniles sentenced to life in prison is minimal; the advocacy group Human Rights Watch said Tuesday there are 227. But the group noted that African American youths receive the life sentence at 22 times the rate of white youth.

Another notable (unpublished) below-guideline sentence affirmance

Thanks to an informed reader, I lhave earned of an interesting (but unpublished) opinion today from the Fourth Circuit affirming a below-guideline sentence in US v. Pasquantino, No. 06-4282 (4th Cir. Apr. 18, 2007) (available here). (Recall that last week, the Fifth Circuit in Anderson issued a significant opinion affirming a below-guideline sentence in unpublished form.)

Pasquantino involves a wide fraud case that, on non-sentencing issues, has already been to the Supreme Court, and it's procedural issues have the Fourth Circuit panel talking at length about the reach and grounds for appropriate habeas relief.

In addition to a lengthy discussion habeas fans wil enjoy, the Pasquantino panel has an extended final discussion rejecting a number of government attacks on the reasons given for the below guideline sentence. Among the notable quotables from the opinion: "the district court was entitled to consider factors for [one defendant's] variance sentence that it ordinarily would not consider under the Guidelines."

When Justice Scalia sounds like Justice Brennan

I have long joked that if you were to read the Blakely majority opinion with your eyes closed ― which is not easy, but worth the effort ― you might think it was authored by the late Justice Brennan and not Justice Scalia. Though some rhetoric in Blakely is classic Scalia, much of the pro-defendant sentiments are straight from a classic Brennan script. The trend continued with Justice Scalia's work in Gonzales-Lopez last year(commentary here), where Justice Scalia joined and wrote for the "liberal wing" of the Court to affirm the reversal of a drug dealer's conviction based on a debatable interpretation of the Sixth Amendment.

Now we get Justice Scalia's work in dissent in James (basics here; commentary here), which includes this Brennanesque passage:

Imprecision and indeterminacy are particularly inappropriate in the application of a criminal statute. Years of prison hinge on the scope of ACCA's residual provision, yet its boundaries are ill defined. If we are not going to deny effect to this statute as being impermissibly vague, see Part III, infra, we have the responsibility to derive from the text rules of application that will provide notice of what is covered and prevent arbitrary or discriminatory sentencing. See Kolender v. Lawson, 461 U.S. 352, 357 (1983). Offenders should be on notice that a particular course of conduct will result in a mandatory minimum prison term of 15 years. The Court prefers to keep them guessing.

Especially because I think Justice Scalia gets the better of the debate in James, it is disappointing and telling that he does not get the votes of either of the new Justices in this case. Once again it is clear that, at least in the arena of non-capital criminal jurisprudence, President Bush has failed to appoint Justices in the mold of Scalia and Thomas (who dissented on even broader grounds).

Of course, Justice Scalia also sound like himself in his James dissent. I found especially amusing and telling these closing lines:

Congress has simply abdicated its responsibility when it passes a criminal statute insusceptible of an interpretation that enables principled, predictable application; and this Court has abdicated its responsibility when it allows that. Today's opinion permits an unintelligible criminal statute to survive uncorrected, unguided, and unexplained. I respectfully dissent.